Prosecutor’s Cooperation With Film No Conflict of Interest

Tuesday, May 13, 2008

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Prosecutor’s Cooperation With Film No Conflict of Interest—S.C.

In Trio of Cases, Justices Set High Bar to Disqualification

By KENNETH OFGANG, Staff Writer

A Santa Barbara Superior Court judge did not abuse his discretion by allowing a prosecutor to remain on a case in which he had opened up his file to assist the maker of a motion picture, the California Supreme Court ruled yesterday.

A trial court order denying a motion to disqualify a prosecutor is entitled to deference on appeal, even in a capital case, the justices said in a unanimous opinion.

The ruling allowing Ronald Zonen of the Santa Barbara District Attorney’s Office to continue to prosecute accused murderer Jesse James Hollywood was one of three issued yesterday dealing with related issues.

In the other cases, the court held that a deputy district attorney who wrote a work of fiction mirroring a real case was not barred from prosecuting that matter, and that a prosecutor did not have a conflict in arguing against release of a minor victim’s confidential psychiatric records after the victim’s father—who was the defendant’s brother—consented to the disclosure.

In the Hollywood case, attorneys for the alleged onetime San Fernando Valley drug kingpin argued that Zonen abandoned his role as dispassionate public advocate in order to assist the producers of “Alpha Dog,” a feature film based on the case that was released in 2006. They contended that it was unethical for an attorney to act as consultant for a film about a pending case, and that Zonen’s involvement gave him an incentive to promote the film at the expense of justice.

Captured in Brazil

Hollywood, who was captured in Brazil in 2005 after nearly five years at large, is accused of masterminding the kidnapping and murder of the 15-year-old half-brother of a former friend who owed Hollywood a drug debt.

Santa Barbara Superior Court Judge Brian Hill accepted Zonen’s claim that he had no interest in the success of the film project, but that he cooperated with the producers because he felt the exposure would help lead to the arrest of Hollywood, who was taken into custody by Brazilian police after a traffic stop.

Hill was overruled by Div. Six of this district’s Court of Appeal, which said that it could not, particularly in a death penalty case, “give our imprimatur to Zonen’s conduct or embolden other prosecutors to assist the media in the public vilification of a defendant in a case which is yet to be tried.”

But Justice Kathryn M. Wedegar, writing for the Supreme Court, said the Court of Appeal failed to give deference to the trial judge’s findings.

Substantial evidence, the justice said, supported Zonen’s arguments concerning his motivation. Neither the Court of Appeal nor the defense, she noted, disputed that Zonen was motivated, at least primarily, by a desire to see Hollywood captured and tried.

No Payment

There was also evidence that Zonen sought to have the movie portray Hollywood accurately, and that he was not being paid for his assistance, Werdegar explained. There was nothing to show that the prosecutor’s involvement with the film would somehow result in his treating the defendant unfairly, she added.

The justice acknowledged concerns over Zonen’s admission that he turned the file over to the producers without reviewing it to determine whether it contained confidential material. Werdegar observed, however, that there was substantial evidence supporting Hill’s finding that any disclosures of such material were inadvertent, and that trial judges have the power to impose sanctions short of disqualification for such conduct.

The case was argued in the Supreme Court by James Blatt of Encino for Hollywood and by state Deputy Attorney General David F. Glassman and Santa Barbara Deputy District Attorney Gerald McC. Franklin for the prosecution.

In a companion case, the court ruled that another Santa Barbara prosecutor, Deputy District Attorney Joyce Dudley, should not be disqualified from prosecuting Massey Harushi Haraguchi, who is charged with rape of an intoxicated person and other offenses.

Dudley is the author of “Intoxicating Agent,” which—like her earlier novel, “Justice Served”—features a Santa Barbara County sex crimes prosecutor named Jordon Danner. In media interviews, she has described her protagonist as “a pumped-up version” of herself and as “Joyce on steroids.”

“Intoxicating Agent” was published in January 2006, four months after Haraguchi was charged. It features a woman who was raped on a beach while drunk and is “in denial about her alcoholism,” and a defendant whom Danner thinks is “despicable,” a “dirt bag,” and a “heartless bastard” and “looks just like the pig he is.”

Santa Barbara attorney Robert Sanger, representing Harguchi, argued that the similarities between the real and fictional cases are unmistakable. The trials were set to begin at the same time, one of the characters physically resembles Haraguchi, and the fictional prosecutor had many of the same attributes and attitudes as Dudley, the defense asserted.

The book, the defense noted, was published by a company that charges authors “a one-time setup fee of only $499,” in exchange for which it produces the book in hardcopy, offers it for sale on the publisher’s Web site, submits it to commercial sites such as amazon.com, sells it to bookstores on a returnable basis, and pays royalties to the author.

Santa Barbara Superior Court Judge Frank Ochoa denied the motion, saying the novel and the case were factually unrelated and that there was no showing that Dudley’s involvement with the book was likely to deprive the defendant of a fair trial. The same Div. Six panel that heard the Hollywood case disagreed with Ochoa, finding that Dudley was “using her official position to obtain personal financial gain” and might skew her official actions to aid book sales.

Werdegar, however, said the trial judge acted within his discretion. There was no evidence, she noted, that Dudley was using any of her actual cases as a means of promoting her book or had otherwise done anything in the Haraguchi case that could be perceived as an effort to boost sales.

“The trial court’s role, and the Court of Appeal’s and ours, is to examine the record for evidence of a disqualifying conflict, not to act as literary critic,” the jurist wrote. “That a prosecutor may pursue an independent writing career does not alone create a conflict with the public interest and disqualify her from future prosecutions, absent proof her writings create a material conflict in a particular case. Here, on the record before it, the trial court permissibly could conclude there was none.”

Werdegar noted in both the Haraguchi and Hollywood opinions that potential jurors who may be swayed by the movie or book could be weeded out by the defense lawyers on voir dire.

In the last of the companion cases, the court ruled that Los Angeles Superior Court Referee Mark Frazin and the Court of Appeal were both wrong in disqualifying several deputy district attorneys in Compton from the prosecution of a defendant, identified only as Humberto S., accused of molesting his niece.

Frazin and the Court of Appeal had reasoned that the attorneys involved in the case, including supervisors, had a conflict because they had advocated quashing a subpoena for the alleged victim’s medical and psychotherapy records, even after the parents had consented to the disclosures. The referee reasoned that under the circumstances, the alleged victim was a “third party” whose interests could not be represented by the district attorney at the same time it was representing the public interest.

Werdegar, again writing for a unanimous high court, disagreed, saying the referee’s ruling was an abuse of discretion because it was based on an erroneous legal conclusion. There was, she wrote, “no formal representation of any third party, no corresponding duty of loyalty, and no divided loyalty or structural incentive potentially at odds with these prosecutors’ duty to handle the prosecution of Humberto S. fairly.”

The case was argued in the Supreme Court by Deputy District Attorney Tracey Lopez and Deputy Public Defender Maureen Pacheco.

The California District Attorneys Association filed amicus briefs supporting the prosecutors in all three cases. The Criminal Justice Legal Foundation and the Rape Treatment Center at Santa Monica-UCLA Medical Center and Orthopaedic Hospital filed amicus briefs supporting the prosecutors in the Humberto S. case.

The cases are Haraguchi v. Superior Court (People), 08 S.O.S. 2764, Hollywood v. Superior Court, 08 S.O.S. 2771, and People v. Superior Court (Humberto S.), 08 S.O.S. 2777.